411 F.2d 627 (5th Cir. 1969), 26843, United States v. Acosta

Docket Nº:26843.
Citation:411 F.2d 627
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Pablo Villareal ACOSTA, Defendant-Appellant.
Case Date:May 22, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 627

411 F.2d 627 (5th Cir. 1969)

UNITED STATES of America, Plaintiff-Appellee,

v.

Pablo Villareal ACOSTA, Defendant-Appellant.

No. 26843.

United States Court of Appeals, Fifth Circuit.

May 22, 1969

Page 628

Phillip D. Hardberger, Odessa, Tex., for defendant-appellant.

Ted Butler, U.S. Atty., Ray Caballero, Asst. U.S. Atty., El Paso, Tex., for plaintiff-appellee.

Before BELL and THORNBERRY, Circuit Judges, and CHOATE, District judge.

BELL, Circuit Judge:

This appeal is from a judgment of conviction entered after a non-jury trial finding the defendant guilty of violating the narcotics laws. Title 21 U.S.C.A. § 174.

One assignment of error centers on the admissibility of evidence seized at the time the defendant was arrested and searched. This issue was raised by a motion to suppress which was denied. A directed verdict of acquittal was due if the evidence in question, the heroin and photographs of the defendant with the heroin, was inadmissible. The other assignment of error is based on the failure of the trial court to require the Government to give defendant the name and address of an informer. We affirm.

With respect to the search and seizure, the Government urges validity on two grounds: One, a border search; and two, probable cause. Finding probable cause, we pretermit decision on the border search theory. 1

The facts giving rise to a finding of probable cause were that a customs agent received information at about 10:00 A.M. on May 28, 1968 from an informer that a quantity of heroin was to be smuggled into the United States from Ojinaga, Mexico. The informer described the smuggler as a young Mexican male driving a 1958 green and white Buick bearing Texas license plate CVY 94. The informer was not certain where the smuggler would take delivery, i.e., in Ojinaga or in Presidio, Texas, across the border from Ojinaga. He stated that the suspect might take delivery in Presidio. At 10:30 A.M. the agent in charge notified the Deputy Sheriff at Presidio to be on the lookout for such a car.

At 12:45 P.M. on that day the same agent was given additional information by the informer with respect to delivery. It was that the same smuggler had met with a dealer from Ojinaga in Presidio and that he had departed in the described vehicle for Marfa, Texas. The fair inference from the testimony of the agent was that the delivery took place in Presidio and that the meeting with the dealer took place between 10:00 A.M. and 12:45 P.M. At 3:00 P.M. the agent, assisted by two Border Patrol Inspectors, stopped the defendant eight miles south of Marfa on the road from Presidio. He was searched and one ounce of heroin was found on his person.

I.

Defendant urges that he was arrested when stopped and that the search was incident to the arrest. We apply the same probable cause test, whether the matter be viewed as a warrantless search or as a warrantless arrest with a search incident thereto.

We take the test from decisions of...

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